Lost in the Nacional Parliament’s Hallways: The Directive 2005/36/EC and the difficult path until its proper application in Portugal

by Rita de Sousa Costa, law student at UMinho
and Tiago Sérgio Cabral, law student at UMinho

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The precedence of EU law over the law of the Member States is one of the fundamental principles of the Union. The Member States must comply with the European dispositions and shall not issue legislation contradicting EU law. To do so would be a breach of the principle of loyalty (art. 4(3) TEU). However, the states do not always legislate with the proper rigour and responsibility and when this occurs the principle of direct effect is key to assure a uniform application of the European Law and the protection of the European citizens. In this short essay we shall study how the Portuguese legislator after correctly implementing the Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (through the Law n. 9/2009, of 4th March) proceeded to change the Portuguese legal framework (through the Law n. 31/2009, of 3rd July[i]) putting our law in direct contradiction with the Directive and how the solution, still in force, came in the form of the direct application of the Directive’s provisions.

Introduction – The Legal Framework

The Directive establishes the rules “according to which a Member State which makes access to or pursuit of a regulated profession in its territory contingent upon possession of specific professional qualifications (…) shall recognise professional qualifications obtained in one or more other Member States (referred to hereinafter as the home Member State) and which allow the holder of the said qualifications to pursue the same profession there, for access to and pursuit of that profession”.

Section 8 of the Directive regulates the training and pursuit of professional activities of architects. In Portugal, the improper redaction of the Law n. 31/2009, of 3rd July led to serious issues regarding the access and pursuit of professional activities of architects by civil engineers. Acquired rights were protected by the article 49 of the Directive which states that “each Member State shall accept evidence of formal qualifications as an architect listed in Annex VI, point 6, awarded by the other Member States, and attesting a course of training which began no later than the reference academic year referred to in that Annex, even if they do not satisfy the minimum requirements laid down in Article 46, and shall, for the purposes of access to and pursuit of the professional activities of an architect, give such evidence the same effect on its territory as evidence of formal qualifications as an architect which it itself issues”.

In the Annex VI we find that, if they started their degree in the academic year of 1987/1988 or previously, those with a university diploma in civil engineering awarded by the Higher Technical Institute of the Technical University of Lisbon, the Faculty of Engineering of the University of Porto, the Faculty of Science and Technology of the University of Coimbra or the University of Minho have the same rights as those awarded a degree in architecture.

We should keep in mind that allowing civil engineers to access and pursuit the professional activities of an architect is not a recent innovation in the European legal framework. In fact, the Directive 85/384/EEC of 10 June 1985 on the mutual recognition of diplomas, certificates and other evidence of formal qualifications in architecture, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, repealed by the Directive 2005/36/EC (art. 62), formerly established that “whereas the aforementioned activities [activities in the field of architecture], or some of them, may also be pursued by members of other professions, in particular by engineers who have received special training in construction engineering or building”.

The Issue – Portugal does not protect the acquired rights of civil engineers

The transposition of the Directive through the Law n. 9/2009, of 4th March assured the proper protection of the acquired rights in its article 46. This is not a situation where the Directive is incorrectly or incompletely transposed. However, three months after the transposition a new legislative act, the Law n. 31/2009, of 3rd July, comes into force, creating serious complications after the transitional period due to its incompatibility with the Directive.

Article 10(2) of the Law n. 31/2009, of 3rd July lays down that only architects registered in the architects’ association may elaborate architectural designs. A transitional provision allowed engineers to keep elaborating architectural designs if certain conditions were met until 1 November 2014 (article 25).

With the end of the transitional period came the confusion. Administrative authorities started creating obstacles to engineers who wished to elaborate architectural designs, even to those who were protect by the acquired rights norm of the Directive. Therefore, said professionals could not pursuit[ii] these activities for a significant period of time, even if the EU law specifically gave them the right to do so.

Obviously, the Directive states the Member States shall recognize the qualifications of professionals from other Member States. Furthermore, professionals from other Member States also have acquired rights and are protected by the Directive. Moreover, it is no uncommon for engineers to elaborate architectural designs in other Member States. Per the annex V and its “evidence of formal qualifications of architects recognised pursuant to Article 46” in Germany or Austria the recognized degrees are awarded a Diplom-Ingenieur while in Portugal the recognized degrees are awarded a Carta de curso de licenciatura em Arquitectura (Degree in Architecture).

In this situation, a civil engineer with a degree from another Member State can elaborate architectural designs in Portugal, but a civil engineer, that meets the conditions set forth by the Directive for acquired rights protection with a Portuguese degree cannot. Meeting the conditions enshrined in the acquired rights disposition of the Directive is not enough to protect the civil engineer with a Portuguese degree, since the letter of the national statute does not allow it. Civil engineers with Portuguese degrees, that meet the conditions set forth by the Directive, are in clear disadvantage against their counterparts from other Member States creating a situation of reverse discrimination[iii].

Furthermore, since other European countries had no provisions (they can’t have them without disrespecting the principle of loyalty) correspondent to the Law n. 31/2009 and are bound to respect the acquired rights enshrined in the Directive, a civil engineer with a Portuguese degree, that meets the conditions set forth by the Directive, can elaborate architectural designs in other Member States, but not in Portugal.

The Solution: The Principle of Direct Effect

In such a situation, there is only one possible solution: directly applying the European legislation using the direct effect principle. The Directive’s acquired rights provisions are clear and unconditional and thus directly applicable. The Portuguese legislator never amended the conflicting national provision[iv]. The law was indeed amended by Law n. 40/2015, of 1st June. However, the conflict with the EU’s law was more or less ignored. Nevertheless, the Portuguese Association of Engineers, in accordance with the European legal framework and the principle of direct effect, (re)started issuing licences that allow civil engineers, that meet the conditions set forth by the directive, to elaborate architectural designs.

Even if this legal imbroglio had a correct and proper solution, there was almost an entire year, from the end of the transitional period of the Law n. 31/2009 until new licences were issued based on the principle of direct effect[v], when civil engineers could not pursue an activity that had significant impact on the livelihood of some professionals[vi]. A hard blow to an activity that was already severely punished by the economic crisis in Portugal.

[i] In its original version. the law was posteriorly amended by the Law n. 40/2015, of 01/06

[ii] Portuguese Association of Engineers requested the expert of opinion of several respect scholars whom were unanimous in condemnation of the Law n.º 31/2009. The Portuguese Ombudsman also shared their opinion and issued an urgent recommendation to the parliament requesting them to amend the law. See

[iii]The president of the Portuguese association of architects supports a different interpretation. According to this interpretation the Directive should not be applied in the Member State where the degree (formal qualifications) was awarded. Therefore, a Portuguese civil engineer would be protected by the acquired rights provision in every Member State of the Union, except Portugal. This position seems to support the idea that reverse discrimination, under certain circumstances, is acceptable. See “Posição da Ordem dos Arquitectos a respeito da Recomendação do Senhor Provedor de Justiça”, Ordem dos Arquitectos, accessed January 27, 2017, https://goo.gl/I6t58L

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